Muralidhar Dash vs The Collector
2023 Latest Caselaw 11189 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                W.P.(C) No.3466 OF 2015

(An application under Articles 226 and 227 of the Constitution
of India)


 Muralidhar Dash
 and others                                    ...      Petitioners

                              -versus-

 The Collector, Balasore
 and others
                                                ...     Opposite Parties


 Advocates appeared in the case through hybrid mode:


    For Petitioners                     : Mr.Biplab Mohanty,
                                          Advocate

                                             Mr. T.K.Patnaik,
                                             Advocate
                              -versus-

    For Opposite Parties                    : Mr.S.N.Das,
                                               Addl. Standing Counsel
   ---------------------------------------------------------------------------
    CORAM:

                JUSTICE SASHIKANTA MISHRA

                          JUDGMENT

13.9.2023.

Sashikanta Mishra,J. The Petitioner Nos.1 to 4 are residents of

villages namely, Khaira and Gopalpur in the district of

Balasore, and Petitioner No.5 is the resident of VSS

Nagar, Bhubaneswar in the district of Khurda,

claiming to be the rightful owners of land measuring

Ac.0.03 decs. corresponding to Plot Nos.29, 32 and 33

under M.S. Khata No.183 of Mouza Talakia. They are

the legal heirs and representatives of late Shyam

Sundar Dash, who died in the year 1985 leaving

behind them as his successors. As such, they have

inherited all the properties of their deceased father

including the property in question.

2. Their father had filed a Civil Suit in the Court of

learned Civil Judge (Jr. Division), Nilgiri being T.S.

No.29/2002-I seeking declaration of right, title and

interest over the suit land besides perpetual injunction

against the State-defendants. By judgment passed by

the learned Civil Judge (Jr. Division), Nilgiri on 24th

April, 2006 followed by decree, the suit was decreed

declaring the right, title and interest of the Petitioners

over the suit land and by permanently injuncting the

State-Defendants from interfering with their

possession.

3. In the meantime, a PIL was filed before this

Court by some persons being W.P.C(PIL)

No.2621/2014. By order dated 17th November, 2014 a

Division Bench of this Court directed that all

encroachments over the land in village Oupada should

be removed latest by January, 2015 without fail. It is

alleged that pursuant to such order, the Petitioners

despite having a decree in their favour from the

competent Civil Court, were forcibly evicted from the

suit land and their houses were demolished. As such,

they have approached this Court seeking the following

relief;

"Under the circumstances stated above this Hon'ble Court may be graciously pleased to admit this writ application, issue notice of Rule Nisi as to why the action of the Opp. Parties in evicting the Petitioners and demolishing their house shall not be declared illegal, issue notice of Rule Nisi as to why the possession of the said property shall not be restored to the Petitioners with immediate effect and why the appropriate

action shall not be taken against them in accordance with law."

4. Heard Mr. T.K.Pattnaik, learned counsel for the

Petitioners and Mr. S.N.Das, learned Addl. Standing

Counsel for the State.

5. In course of hearing, Mr. Pattnaik has argued that

the competent Civil Court having declared the right,

title and interest of the Petitioners over the suit

property and the same being confirmed by the

appellate Court, the concerned authorities had no

authority or power to act otherwise in relation to the

suit property more so as they have not further

challenged the decree. Mr. Pattnaik has also drawn

attention of this Court to the counter affidavit filed by

the Opposite Parties wherein the contentions raised by

the Petitioners have been admitted inasmuch as, it has

been stated that the fact of passing of decree by the

trial Court and its confirmation by the appellate Court

was never brought to the notice of the Tahasildar at

the relevant time, for which the facts being not within

the knowledge of the Tahasildar, the eviction was

carried out. This, according to Mr. Pattnaik, proves the

case of the Petitioners in its entirety.

6. Mr. S.N.Das, learned Addl. Standing counsel for the

State, also fairly submits that had the fact of passing

of the decree in favour of the Petitioners in respect of

the suit land been brought to the knowledge of the

concerned authority, they would not have been evicted.

The Petitioners must also be blamed for not bringing

such fact to the knowledge of the Tahasildar at the

relevant time.

7. This Court finds that in the counter affidavit

filed by the Tahasildar, Oupada, it is stated under

paragraph-6 as follows;

"6. That at the cost of repetition the deponent most humbly states that the decree was passed in favour of the petitioners on 21.8.2002, after dismissal of the Munsif Appeal, by the learned Adhoc Additional District Judge(FTC), Balasore, by which time, the land was within the jurisdiction of Nilgiri Tahasil.

It is submitted that Nilgiri Tabasil was bifurcated in the year 2008 and a new Tahasil i.e Oupada Tahasil came into existence in the same year. The eviction drive was initiated in the year 2014-15, pursuant to the kind order of this

Hon'ble Court on a writ petition vide WPC No. 2621/2014 and as such the eviction of encroachment was completed accordingly. During the periods and notwithstanding issuance of notice in encroachment case, the petitioners had never approached before the opp. party no.3 by filing the certified copy of the decree nor even filed any application for execution of the decree. Since at the time of eviction, the above facts were not within the knowledge of the opp.party no.3, on the basis of ROR showing the status of the land, the petitioners were evicted, which cannot be treated as illegal and arbitrary in the eye of law. Therefore, in view of the above, the writ petition being devoid of any merit is liable to be dismissed."

8. In view of the clear admission of the Tahasildar,

Oupada, as referred above, nothing really survives to

be decided in the present Writ Petition save and except

holding that the Petitioners should not have been

evicted from the suit land.

9. In view of what has been narrated hereinbefore,

it is more than evident that the Petitioners are entitled

to be restored possession of the suit land in terms of

the decree passed by the Trial Court as confirmed by

the Appellate Court.

10. Resultantly, the Writ Petition is allowed. The

Opposite Parties are directed to pass necessary orders

to restore possession of the suit land in favour of the

Petitioners without any further delay and in any case,

not later than two months from the date of production

of certified copy of this order by the Petitioners.

11. The Opposite Party-authorities shall act upon a

certified copy of this order to be produced by the

Petitioners.

.................................. Sashikanta Mishra, Judge Ashok Kumar Behera